Wednesday, June 27, 2018


The Supreme Court has declared in Trump v. Hawaii that the President's travel ban was a legitimate use of executive power.  Unfortunately, the case was decided 5-4, along partisan lines.  I would have liked to see some crossover, since this should be about the powers of the executive branch, not about how one side likes it and the other doesn't.

Opponents of the decision, of course, raised the specter of Korematsu.  That decision, you'll recall, upheld the constitutionality of FDR's internment camps for Japanese Americans during World War II.  Which is why Chief Justice Roberts, who wrote the majority opinion, felt he had to deal with it.

Thus he wrote in his opinion that while the dissent invokes Korematsu, it's for rhetorical advantage and has nothing to do with the controversy at hand.  Roberts distinguishes rounding up U.S. citizens on the basis of race and sending them to concentration camps, with a facially neutral policy that denies certain foreign nationals admission to the country--the latter is an act any President can order (even if you mistrust his policy reasons).

Then Roberts notes

The dissent's reference to Korematsu, however, affords this Court the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and--to be clear--"has no place in law under the Constitution." 323 U.S., at 248 (Jackson, J. dissenting).

Because of this, many are saying Korematsu has been overruled.  For instance, the Wikipedia page on Trump v. Hawaii notes "The decision effectively overruled Korematsu."

But did it?  This seems pretty clearly to be dicta.  The swipe at Korematsu wasn't part of the Court's reasoning, it was just them trying to distinguish that case, and noting by the way, it no longer applies, anyway.

Which is why Wikipedia says Korematsu was "effectively" overruled.  In other words, it wasn't actually overruled.  And guess what--if you want to use that standard, Korematsu was "effectively" overruled years ago, since it was well understood that no justice would support it.

So I'd say Korematsu is still officially the law of the land.  Just don't use it in any argument you make in court.


Anonymous Anonymous said...

"Wikipedia says"

Interesting locution given the source of Wikipedia verbiage

4:16 AM, June 28, 2018  
Anonymous Lawrence King said...

This guy on Twitter had a brilliant take on the combination of the public-sector union case and Korematsu:

rough week

5:21 PM, June 28, 2018  

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